Since 1993
Our firm has extensive experience in many different areas of the law and litigation. We represent and provide ongoing advice to individuals and business owners in the Travis and Williamson County area. Our firm handles legal matters in the following practice areas: Divorce, Custody, Child Support, Modifications, Criminal Defense, Immigration, Personal Injury, Auto Accidents, Real Estate, Wills and Probate, Corporation, Limited Liability Company, and other Business Formation as well as other areas.
Questions & Answers
The Texas Family Code was created with particular attention to what is in the best interests of the children who will be affected by the break-up of the marriage, and are gender neutral. Judges are bound to make decisions that put children first. Althoughl it is not law the Courts and our firm ask that the parties keep in mind “The Children’s Bill of Rights”, which is a guide in helping your children deal with this difficult process.
Parental Rights
Under Texas law and statute “Joint Managing Conservatorship” (JMC) is the type of custody which is presumed to be in the best interest of the Children. Under a Parenting Plan with Joint Managing Conservatorship, both parents have basic equal rights and duties regarding their children. Both parents, have the right of access to the childrens’ medical, educational, psychological, and legal information, the right to attend school activities, and the right to consent to medical treatment in an emergency. Both parents have the duty to protect, provide for, care for, and reasonably discipline their children when they are in their possession. The rights to consent to invasive medical treatment, to psychiatric or psychological care, as well as the rights to represent one’s child in legal action or to make important decisions concerning the child’s education, are a bit different. One parent may have the exclusive right to do any of these things. Or both parents may have the right to do so, subject to the agreement of the other parent. Finally, one parents may have the exclusive right to designate the primary residence of the children and to receive payment for the support of the children. If the parties cannot agree to how these rights and duties should be appointed, a judge will determine what is most appropriate, based on the best interest of the children, and other factors, which are presented at a hearing. Spouses can and we encourage you to agree on any allotment of these rights.
Under Texas law and statute Sole Managing Conservator/Possessory Conservator is an alterative type of custody. One parent, the Sole Managing Conservator, has the exclusive right to do all of the above. The other parent, the Possessory Conservator, has basic rights of access and basic duties to care for their child, but they do not have the right to make any major decisions. This type of custody is usually appropriate where one parent has committed domestic violence or in other serious cases of neglect, abuse, or separation.
Under the Texas Family Code, the non-custodial parent will be awarded visitation with the children pursuant to the Standard Possession. That parent will generally be entitled to possession of the child every Thursday evening from 6:00 p.m. to 8:00 p.m., during the 1st, 3rd, and 5th weekends of every month beginning on Friday and ending on Sunday, a period of at least 30 consecutive days in the summer, and alternating holidays and spring breaks. A parent could also request extended standard visitation, which means visits would begin when the child is released from school and end when the child goes back to school. This is the bare minimum that the Texas Legislature determined would be in the best interest of the children and still protect the parental rights of the non-custodial parent.
In cases were there has been abuse, family violence, neglect, or drug/alcohol abuse by the parent there may be a need for visitation to be supervised. This means that that party will not be allowed to have visitation without a third party being present. A family friend, relative, counselor, therapist, or even a service such as Kids Exchange might supervise visitation.
If the parents live more than 100 miles apart there are other provisions which include, Long-Distance Travel provisions. Such provisions set guidelines for scheduling flights for children and delegate responsibility for costs associated with travel.
Texas courts are mandated under the law to effect a “just and right” property division. That does not mean a 50/50 split. However, unless circumstances exist, which require a disproportionate share of community assets and debts, to one or the other party, the division will likely be fairly equal. A Court may award a greater percentage of the property to one spouse if doing so would be in the best interest of the parties’ children, or if the other spouse is guilty of fault in the break-up of the marriage, such as adultery or domestic violence. The parties can also agree to basically an property division they desire and enter as part of an Agreed Final Decree of Divorce, or an Agreed Property Division Incident to Divorce.
Community Property
Under Texas law the property of the parties is consider the marital estate. This is broken down into the “Community Estate” and the “Separate Estates” of the parties. Anything that is “acquired during the marriage” is presumed to be “Community Property” (Community Estate). This includes the income of both parties as well as debt. Only “community property” is subject to division by the Court in a divorce. Separate property is property received by one spouse as a gift or through inheritance, property obtained by one spouse prior to marriage, and certain other types of distributions. This is a very basic breakdown. Property Characterization can be complex. We will discuss all the issues with to determine what would be an appropriate property division in you divorce.
These are only a few of the many issues that may come up in a divorce. If you are concerned about the possibility of a divorce or are currently in the middle of a divorce, it’s important that you know and understand your legal rights. Our team of family law attorneys has the experience and expertise to help you avoid all the legal obstacles that may stand in your way. Please call our firm, if you are or may soon be dealing with a divorce, so we can help.
In general Adoptions involve a two step process. The Termination of Parental Rights and the Adoption. However, in many cases it can be done in one action, such as when a Step-Parent or closely-related relative is adopting the Child or Children.
A homestudy must be performed, which is a report, prepared by a court appointed social worker. The report will include things regarding the family history the condition of the home, any criminal history and other such things.
The termination can be voluntary, in which case the parent or parents sign a Relinquishment of Parental Rights affidavit. An involuntary termination can be based on many different grounds but most commonly abandonment. When the parent’s, whose rights are being terminated, whereabouts is unknown and have not been known or if the parent is unknown by the other parent, there are specific notice requirements that must be followed, in order to perfect the termination.
The Texas Department of Regulatory Services-Child Protective Services also is involved in may such cases based on abuse, neglect and abandonment.
We will explain the legal process of Termination and Adoption including issues such as criminal background checks, a change of name of the child, termination of the previous parent’s rights, the filing of a petition for adoption.
Under Texas law after a divorce has been finalized for one parent to go back to court and get portions of their divorce decree modified in their favor, related to child issues such as Child Support, Visitation, Parental Rights, Residency of the Child. Additionally the same is true for parents who have never been married and an order Establishing the Parent-Child Relationship has been entered which specifies the conservatorship and possession of the children. Both are considered Orders Affecting Parental Rights.
There are specific instances when such an order can be modified by statute. The Court in all instances must determine that any modification is in the best interests of the child. Additionally, however, there must be a Substantial Change in Circumstances from the time the order was entered, the child is at least 12 years of age and has filed an affidavit naming the person who is the child’s preference to designate the primary residence of the child, or the conservator who designated the primary residence has voluntarily relinquished the primary care of the child for at least six months.
Also if it less that one year from the time the order was entered and a person seeks to change who is the conservator that designates the child’s primary residence there must be proof of endangerment to the child physical health or emotional development, the other parent consents to the change, or the other parent has voluntarily relinquished the primary care and possession of the child for at least six months.
A conviction for Child Abuse or Family Violence is considered a Substantial Change in Circumstances.
In order to Modify Child Support there must be a Substantial Change in Circumstances since the last order was entered, or it has been three years since the order was rendered and the child support differs by 20% or $100 from the amount that would be awarded according to the guidelines.
There are many things that may or may not constitute a significant change in circumstances. We can answer your questions and insure that your parental rights are protected.
If you have a modification issue please contact our law firm so we can help.
In Texas, a person is legally intoxicated and may be arrested and charged with DWI with a .08 BAC (blood or breath alcohol concentration). However, a person is also intoxicated if impaired due to alcohol or other substances regardless of BAC; that is, if you have lost the normal use of your physical or mental faculties. Whether you’re the driver or the passenger, you can be fined up to $500 for having an open alcohol container in a vehicle.
DWI with a Child Passenger
You can be charged with child endangerment for driving while intoxicated if you’re carrying passengers younger than 15 years old. DWI with a child passenger is punishable by:
- a fine of up to $10,000,
- up to two years in a state jail, and
- loss of your driver license for 180 days.
If you refuse to take a blood or breath test, your driver license will be automatically suspended for 180 days. However, if you submit to the breath test if your BAC is over the limit your license will be suspended for 90 days.
Punishment for DWI varies depending on the number of convictions:
First Offense
A fine of up to $2,000
Three days to 180 days in jail
Loss of driver license up to a year
Annual fee of $1,000 or $2,000 for three years to retain driver license
Second Offense
A fine of up to $4,000
One month to a year in jail
Loss of driver license up to two years
Annual fee of $1,000, $1,500 or $2,000 for three years to retain driver license
Third Offense
A $10,000 fine
Two to 10 years in prison
Loss of driver license up to two years
Annual fee of $1,000, $1,500, or $2,000 for three years to retain driver license
If your are stopped by a law enforcement officer and are suspected of driving while intoxicated, you will generally be asked to take a field sobriety test (walking a straight line, standing on one leg, touching your nose) if an officer believes you are intoxicated after this he will likely ask to perform blood, breath or urine test to determine your BAC level. (this most likely will occur at the station after you are taken into custody. However, many officers have field kits that they can use on the scene. Most states including Texas have implied consent laws, which means that you must comply with a test or face fines and/or license suspension for refusing to take the test. However, you cannot be forced to perform any test or give any specimen. The State is obtaining evidence of your alleged intoxication, which will be used against you.State and Federal constitutional rights allow you to refuse within the parameters of the implied consent law consequences (suspended license). Remember that if you refuse you will in all likely hood be arrested. However, your refusal cannot be used against you in Court to prove your guilt.
If you refuse the test or are found to be legally intoxicated, chances are you’ll be taken into custody and brought to a police station where you will be held until your are released on bail. In addition, your license may be temporarily suspended and your vehicle may be impounded for a period of time after the incident.
You have a right to a Jury Trial or you can plead guilty. Upon conviction most courts will, place you on community supervision (probation), impose fines, suspend or revoke your license, require participation in a drunk driver education program, require community service work, and possible jail time.
In addition, some judges may require you to participate in alcohol or drug treatment programs as part of a community supervision program or have an ignition interlock device installed on your vehicle.
Texas provides for a conditional driving permit. However this is not a right. In most instances you must apply with the County Judge for authorization to drive to and from work at very specific hours of the day such as in the morning and afternoon. Additionally you will be required to obtain and SR-22 insurance policy. This is a policy that includes a contract between the State and the insurance carrier to immediately report you if your coverage expires during the suspension period. You will be required to pay a fee to reinstate your license after the suspension period. It is not automatic.
If you are caught driving with a suspended license you will be arrested and in all likelihood if you are on probation that will be revoked, possibly resulting in serving a jail sentence, in addition to facing penalties for the charge of driving with a suspended license.
However if you are involved in an auto accident your affected in a direct and personal way. Each incident is different and should not be lumped together with other similar accidents, but that is exactly how insurance companies and many attorneys look at victims of auto accidents.
In Texas every driver is required to be insured with a minimum of liability coverage. That means coverage for when you are at fault. You do not have to cover yourself but you have insure those who may be harmed by you are your vehicle.
In most cases anyone in your vehicle, including yourself, will be covered up to a certain amount for personal injury. This is called Personal Injury Protection (PIP). In Texas unless you specifically opt out of coverage in writing, you will have PIP. This is coverage regardless of who is at fault.
If you are injured you should seek medical assistance as soon as possible. If you are able you should always call the police so that a report can be made of the incident. You should obtain insurance information from the other driver as well as the names of possible witnesses. The other person is required by law to provide this information. No one is allowed to leave the scene of an accident without first finding out if anyone is seriously injured and without rendering aid as reasonably as possible (including calling emergency assistance).
Here are some steps to follow if you are in a car accident. They can reduce the hassles and increase your chances of receiving fair compensation for any damages.
- Call an ambulance for anyone seriously hurt
- Write down the name, address, home and work phone numbers, driver’s license number, and insurance company of the other driver and the other car’s owner (if the other driver does not own the car).
- Write down the names, addresses and home and work phone numbers of all passengers in the other car.
- Write down the other car’s make, year, and license number.
- Write down the names, addresses, and home and work phone numbers of all witnesses.
- Make a diagram of the accident. Show the positions of both cars before, during and after the accident. If possible, measure skid marks, and show them on the diagram. Be sure that your diagram shows traffic signals, stop signs, and crosswalks.
- Make notes on the weather and road conditions at the time of the accident. Also make notes on where and when the accident took place.
If you are contemplating on making a claim, you should contact an attorney. Although you can always settle your claim with an insurance company on your own. However an experienced attorney can help to balance process to protect your rights. You may also decide that filing a lawsuit is the only way for you to get a reasonable settlement.
If a dispute arises regarding the accident, or if you have any questions about your right to make a claim for your personal injuries or your property damage, call us. Procedures for obtaining compensation can be very complex. It is best to contact us as soon after the accident as possible, since there are time limits for making claims.
If you cave an injury claim do not hesitate. Statutes of limitations put time limits on when actions may be brought. If you wait too long to make a claim, and the statute of limitations passes, your claim will be denied — even if it was valid. This means if you wait till after the deadline any lawsuit you bring can be dismissed
Different statutes of limitations apply to different kinds of claims. In Texas generally claims are for two years in most cause of actions. However, many types are shorter. Some claims require that you meet certain requirements first. Even if you think you have passed the deadline you should contact an attorney because in some situations the time can be extended due to certain principles of law. Call or contact us if you have questions right away.
Basics
The first step in any divorce is to make the decision that you cannot continue with the marriage and that it is the best option for you to end it. Once you make that decision, we can help you through the legal process. We will be to draft an Original Petition for Divorce and file it in the appropriate Court. The Texas Family Code, requires that you must have been a resident of Texas for at least six months and a resident of your county for at least 90 days before you can file for divorce in the state.
The Original Petition will give notice to your spouse what the lawsuit is about. This includes basic facts surrounding the marriage, as well as the grounds for divorce. Most commonly, people claim insupportability (no-fault) as the grounds for divorce. However, there are times when there are other reasons for the divorce such as adultery, cruel treatment, and, abandonment, which attribute fault to one party or the other. In pleading these grounds specific legal considerations must be taken into account. Usually fault is only a consideration in determining an unequal property division. Because you believe that the other party was at fault does not necessarily mean you need to litigate the issue. A good attorney should try to make the process as painless as possible.
If your spouse has already filed a divorce you should file an Original Answer as soon as possible. There are legal deadlines to meet which can have serious consequences to your rights. We will draft an Original Answer and file it with the Court in a timely fashion. One common question that clients have is “How long will this take?” That depends on the complexity of the case and the level at which the issues of the divorce will be contested. Generally, however, there is a mandatory 60-day waiting period before the Court can actually grant the divorce, after an Original Petition for Divorce has been filed.
Many times there is a need for Temporary Orders. If you need immediate arrangements made while the divorce is pending with regard to child support, spousal support, or property, we will file a Motion for Temporary Orders and set a Temporary Orders hearing. Also many situations call for a Temporary Restraining Order, or, in cases of domestic violence, a Protective Order. If you are worried about your spouse withdrawing funds, selling property, diverting mail, or cutting off utilities without your consent, you may need such an order. Also if your spouse is preventing you from seeing your kids, or harassing or abusing you, such an order would likely be a immediate necessity. A judge will make temporary orders that are meant to promote the stability of the family, and the protection of property until the divorce can be finalize.
If you and your spouse are separating amicably, without out any dispute about custody, child support, visitation and the way the property will be divided, you can consider an uncontested divorce. In this case we can draft all of the necessary paperwork. We will then forward the documentation to your spouse. You may also come in together. However, the Code of Professional Responsibility mandates that we can only represent one of the parties. If your spouse hires an attorney we will serve the documentation on your spouse or his attorney. We will prepare an Agreed Final Decree of Divorce, you and your spouse will sign the Decree. We will then prove up the case with you before a Judge after the 60 day waiting period has expired. The hearing will be simple and will not take much time at all. Once the Judge signs the decree your Divorce will be final.